In this series we will discuss the fundamental basics of Family Law, providing information and guidance that may answer questions you have throughout the Family Law process. This week we discuss what exactly a subpoena is.
What is a Subpoena?
A subpoena is an Order issued by the Court compelling a person to produce documents or to give evidence at a hearing or trial. The Court is able to issue three types of subpoenas, which are the following
- A subpoena for production;
- A subpoena to give evidence; and
- A subpoena for production and to give evidence.
A subpoena is generally only used when a person or organisation is unwilling or unable to meet the request voluntarily. A subpoena for production compels the witness to provide the Court with any documents named in the subpoena. It cannot however compel a witness to create a document for the purpose of the proceedings. A subpoena to give evidence compels the witness to attend Court and provide evidence at a particular hearing.
Who can issue Subpoenas?
When Family Court proceedings are on foot, either party or if applicable the Independent Children's Lawyer can request that the Court issue a subpoena by filing a Form 14 which is located on the Family Court of Western Australia website. If you are representing yourself in proceedings you will also need to write a letter to the Court explaining why you need the subpoena to be issued.
Are there any time constraints when filing a Subpoena?
There are time constraints to consider if you wish to file a subpoena, which are the following:
- If you wish to subpoena a witness to attend Court and give evidence you must file and serve the subpoena at least 7 days before the hearing date;
- If you require the witness to produce documents, or to produce documents and attend Court the subpoena must be filed at least 14 days before the hearing date; and
- Some organisations have particular timeframes for the receipt of subpoenas, so it is a good idea to contact the organisations you wish to issue a subpoena to in order to confirm this.
How much does it cost to issue a Subpoena?
The Family Court has a subpoena filing fee of $55.
What is Conduct Money?
You are required to pay the subpoenaed witness money to reimburse them for the reasonable costs of complying with the order, this is referred to as conduct money. If they do not receive this money they are not required to comply with the subpoena. For attendance at Court you will need to pay conduct money of $75 to a witness but this amount will be higher for an expert witness so you will need to check with the witness for their costs. A subpoena requiring production of documents will also require conduct money to cover costs associated with getting the documents to the Court.
What happens if I am subpoenaed?
How you must respond to a subpoena is dependant on which type of subpoena you receive which you can determine by reading the first page of the subpoena that you have been served with. If you receive a subpoena requiring you to give evidence you must attend Court on the date and time indicated in Part C of the subpoena. If you receive a subpoena which compels you to produce documents you will be provided with a list of the documents you are being compelled to produce in the Schedule to the Subpoena. On the subpoena you will also be provided with a time and place for production of the documents. If you do not wish to attend the Court you may post the documents to the Principal Registrar at least 2 days before the date listed on the subpoena.
Unless you have grounds for non-compliance or your objection to the subpoena is upheld by the Court, you must comply with any subpoena you receive. This means that you will have to produce the required documents or give evidence as ordered to in the subpoena. Failure to comply with the subpoena may result in you being found guilty of contempt of Court, and may even result in the Court issuing a warrant to arrest you. A subpoena will remain in force until:
- The subpoena is complied with;
- The issuing party or Court releases you from your obligations; or
- The trial or hearing is concluded.
If you are involved in Family Court proceedings and wish to issue a subpoena, or you have been subpoenaed, it may be helpful to seek advice from an experienced family law practitioner.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
